Should felons have a right to Stand Your Ground?

Florida Supreme Court to examine claim from Palm Beach County case

The Florida Supreme Court will decide whether felons are able to seek immunity… (Palm Beach County Sheriff's…)

July 12, 2014|By Marc Freeman, Sun Sentinel

Even the man who wrote Florida's Stand Your Ground law didn't see this one coming: A convicted criminal invoking the controversial law to justify shooting someone.

"If you've lost your right to bear arms, then why should you have the protections that law-abiding citizens should have?" asks former state Sen. Durell Peaden Jr., R-Crestview, who sponsored the original Stand Your Ground legislation in 2005.

This is the conflict the Florida Supreme Court recently agreed to examine in an unresolved Palm Beach Countycase. The justices will decide if felons are eligible for immunity from prosecution under the Stand Your Ground self-defense law.

"It was never contemplated," Peaden told the Sun Sentinel.

The felon raising the issue is Brian Bragdon, a convicted cocaine dealer who two years ago shot at two men outside a West Palm Beach-area strip club.

Bragdon, 25, claims he was defending himself, but state prosecutors say he isn't entitled to that defense against attempted murder charges, because, as a convicted felon, he shouldn't have been carrying a gun.

The Stand Your Ground law simply says an individual does not have to retreat andcan legally use deadly force if the person reasonably believes doing so is necessary "to prevent imminent death."

Critics of the law, including Democratic state lawmakers and civil rights activists, say it should be repealed, a protest that intensified last year after neighborhood watch volunteer George Zimmerman was acquitted of second-degree murder in the 2012 shooting of Trayvon Martin, 17, in Sanford.

What is in focus now is a portion of the Stand Your Ground law that says it doesn't apply to a person "engaged in an unlawful activity."

That clearly was meant to prevent a defendant from using Stand Your Ground, if, for example, he shot and killed someone while breaking into a house, Peaden explained.

But prosecutors also contend that felons using guns similarly would be restricted from adopting Stand Your Ground as a defense. This is because it's illegal for felons to possess guns — meaning the "unlawful activity" rule applies.

But is that fair?

"You're depriving them of a right that every other Florida citizen has," said Bob Jarvis, a constitutional law professor at Nova Southeastern University.

Jarvis expects the state's high court to rule in favor of giving gun-toting felons the chance to seek Stand Your Ground immunity, rather than "punish them" for their prior bad acts.

Still, there's a question of whether any distinction should be drawn when it comes to a felon's background, the professor said. Has the felon until that point been a law-abiding citizen for the past 20 years, after a conviction for tax fraud? Or has the felon recently gotten out of prison after serving 10 years for a violent crime?

Tom Blomberg, dean and professor at Florida State University's College of Criminology and Criminal Justice, also expects the state Supreme Court will decide felons can't be precluded from pursuing a Stand Your Ground defense.

"It raises all sorts of concerns when you talk about equal protection under the law," Blomberg said. "What does [a defendant's] felony background have to do with the particulars of the case" for which he's charged?

The dean says it makes sense for the Supreme Court to enter the dispute now, because two appellate courts have issued conflicting opinions in recent years. One court said felons can use Stand Your Ground, while another said they can't.

The 2nd District Court of Appeal in Lakeland last year said a felon in a Lee County second-degree murder case was justified in shooting to protect his life when anassailant pointedtwo guns at him.

But the 4th District Court of Appeal in West Palm Beach saw a similar situation differently. In a 2012 opinion, it reversed a Palm Beach County circuit judge's decision to dismiss an aggravated battery with a firearm charge against a felon, Harvey M. Hill Jr., who shot a man during an altercation over a woman.

Hillclaimed he was attacked by two men, one carrying a gun, and was cornered while sitting on his own porch. But the appellate court said Hill was not allowed to use Stand Your Ground.

"Here, the defendant used the very instrumentality that he was not lawfully allowed to possess to injure his alleged assailant," the opinion said.

When Bragdon took his Stand Your Ground claim to the 4th District Court of Appeal last year, a three-judge panel denied him in October, citing the 2012 opinion.But the court also agreed its opinion conflicted with the other appellate court.

Bragdon's attorney, Jack Fleischman, then petitioned the Supreme Court to settle the felon-Stand Your Ground issue. The high court called for Fleischman to file his initial arguments in writing by July 28.

"We have a very strong argument that even a convicted felon can use Stand Your Ground," the attorney said.

Bragdon had been convicted in 2009 of selling cocaine andsentenced to 75 days in jail, records show.